Wisconsin Supreme Court Decision Leaves Certified Questions Unanswered

Published by Susan Allen on | Permalink

In State v. Howes, 2017 WI 18, the Wisconsin Supreme Court analyzed a warrantless blood draw in an OWI in light of, Missouri v. McNeely, 133 S. Ct. 1552 (2013), in which the U.S. Supreme Court addressed the constitutionality of warrantless blood draws to prevent dissipation in alcohol concentration.  Howes, however, may not provide Wisconsinites all of the guidance that many anticipated.

The defendant, David Howes, was involved in a motorcycle versus deer crash.  By the time a deputy responded, emergency personnel were already treating an unconscious Howes.  The deputy could not find any witnesses, but a bystander reported that Howes smelled of intoxicants.  Howes was hospitalized.  On his way to the hospital, the deputy checked Howes’ record and found out that Howes had three prior OWI/PAC. This meant that Howes was subject not to the general 0.08% limit on blood alcohol concentration while driving but, as a repeat offender, to a stricter 0.02% limit.  The deputy also spoke with the EMTs who treated Howes, one of whom reported smelling intoxicants emanating from Howes.  The deputy arrested Howes, then unconscious, for operating a motor vehicle with a prohibited alcohol concentration based on the smell reported by others, the 0.02% threshold and the crash itself.  While Howes was still unconscious the deputy read him the Informing the Accused form and asked if he would submit to a blood test. Receiving no response and without first seeking a warrant, the deputy instructed the hospital staff to draw a blood sample.  The results showed Howes’ blood alcohol concentration was 0.11%. 

In his trial for OWI (4th offense) and operating with a prohibited alcohol concentration, Howes moved to suppress the results of the blood draw.  The circuit court granted the motion.  The court found the deputy had probable cause to arrest Howes.  However, the court held Wisconsin’s implied consent law was unconstitutional as it related to a blood draw of an unconscious person without a warrant or exigent circumstances.

The State appealed and the court of appeals certified the case to the Wisconsin Supreme Court.  The court of appeals certified a single issue: whether the portions of Wisconsin’s implied consent law that allow for warrantless blood draws from unconscious suspects violate the Fourth Amendment to the Constitution.

The lead opinion, authored by Chief Justice Roggensack, reversed the decision by the trial court, but on grounds that appear to diverge from the reasoning of the trial court and the issue certified by the court of appeals.  First, the court found the deputy had probable cause to arrest Howes for the same reasons outlined by the trial court.  The court focused its analysis on exigent circumstances sufficient to justify a warrantless blood draw.  Citing extensively to Schmerber v. California, 384 U.S. 757 (1966), and McNeely, the court found there were exigent circumstances, stating "Under the totality of the circumstances presented herein, which included a seriously injured, unconscious person, who was being subjected to medical treatments for his injuries and who had 0.02 percent as his PAC threshold, a reasonable officer could have concluded that further delay in drawing Howes’ blood would have led to the destruction of evidence through the dissipation and dilution of alcohol in Howes’ bloodstream."  Howes, ¶ 51.  The court remanded the case for further proceedings.

The majority concluded that exigent circumstances existed at the time due to the possible dissipation or destruction of evidence (alcohol) in Howes’ blood had the deputy waited to obtain a warrant. This was not the question presented in the circuit court, nor was it the question certified by the Court of Appeals.

Justice Gableman, joined by Justice Ziegler, concurred.  While Justices Gabelman and Ziegler agreed with the majority’s mandate, Justice Gableman focused on the question certified by the court of appeals – “whether provisions in Wisconsin’s implied consent law authorizing a warrantless blood draw from an unconscious driver based on the driver’s implied consent are unconstitutional under the Fourth Amendment to the United States Constitution.”  Id. ¶ 52.  Noting that McNeely was not relevant to this consideration, he found Howes did not prove beyond a reasonable doubt that the portions of the implied consent law applicable to unconscious drivers, namely the portions that indicate a driver consents unless he or she expressly revokes consent, are unconstitutional.  The concurrence concluded the presumption established by the implied consent law that an unconscious driver does not withdraw consent was not per se unreasonable and in such a circumstance, there was no need for a warrant because the unconscious driver has voluntarily consented to the blood draw.

The dissent, authored by Justice Abrahamson and joined by Justice Walsh Bradley in full and Justice Kelly in part, held the portions of the implied consent law authorizing warrantless blood draws on unconscious individuals to be unconstitutional.  Harshly criticizing the lead opinion’s focus on exigent circumstances, the dissent explained “because unconscious drivers have not freely and voluntarily consented to the warrantless blood draw under the Fourth Amendment . . . the warrantless blood test in the instant case should be suppressed.”  Id. ¶ 136.  More specifically, the dissent evaluated the issue in the context of searches incident to arrest, arguing that if the U.S. Supreme Court will not establish blood draws as a per se rules that warrantless blood draws are authorized under the search incident to arrest exception, then warrantless blood draws cannot be allowed based solely on statutorily imputed implied consent.

Ultimately, the split decision does not provide direct authority on the issue of the constitutionality of the implied consent law.  Instead, this decision suggests that officers must continue to evaluate the totality of the circumstances and with an eye toward the issues relevant to exigent circumstances.  The only clear-cut instruction at this point may be to obtain a warrant whenever possible.

Only Wisconsin Case Before U.S. Supreme Court this Term Should Not Be Decided

Published by Jeffrey A. Mandell on | Permalink

There is only one Wisconsin case at the U.S. Supreme Court this Term. Murr v. Wisconsin (No. 15-214) will be heard on March 20—but the Court should not decide it.

As this blog has previously detailed, the Murr case involves a dispute about how land-use regulations adopted to protect the Lower St. Croix River apply to a riverside property in northwestern Wisconsin. The Wisconsin state courts uniformly turned aside the Murr family’s claims that the regulations as applied by St. Croix County unconstitutionally reduced the value of their land. In January 2016, the U.S. Supreme Court granted the Murrs’ petition to review the case.

There is no shortage of intriguing storylines intertwined in the Murr case. Among them:

  • The dispute is over the balance between private property rights and government regulation, which is always a hot-button issue. Whether the conflict here has constitutional dimensions and how to determine that are both contentious questions. In addition to numerous organizations that have chosen sides, nine states have filed a brief supporting Wisconsin’s position, and nine other states filed in support of the Murrs.
  • The case has dragged on, even by the standards of extensive litigation. St. Croix County denied the Murrs’ request for a zoning variance in 2006. Once the case wended through the courts and the Supreme Court accepted review, it then left the case in limbo, so that it is hearing the case almost a year later than anticipated—all without explanation.
  • The case will be heard by a short-handed, eight-member Supreme Court on the same day that the Senate Judicial Committee will convene hearings on the nomination of Judge Neil Gorsuch to fill the Court’s vacancy. If that’s not enough inside baseball, the Murr argument will also mark the debut of Wisconsin Solicitor General Misha Tseytlin before the Supreme Court.

But one of the most interesting aspects of the case is that there are several reasons that the Supreme Court should not decide the dispute at all. There’s no need to reach the constitutional question, and courts generally avoid making new constitutional law unless doing so is necessary. The Murrs’ case was dismissed in 2013 because it was not filed within the time limits prescribed by Wisconsin law. St. Croix County also argued at that stage that the Murrs had not taken all of the steps required before filing suit.

Either argument, if correct, would dispose of this case without a controversial constitutional ruling. Neither argument was fully explored in the Wisconsin appellate courts. As it has done before, the Supreme Court should send the case back to the state courts for resolution of these antecedent issues and should consider the constitutional question only if necessitated by the lower courts determining that the other issues don’t end the case.

We made this argument in an amicus brief (available here), filed on behalf of three membership organizations that, among them, represent every level of local government in the state of Wisconsin. The brief urges the Court to follow its own precedent, to allow this case to be resolved on the narrowest possible grounds, and to avoid wading into a complex constitutional conflict unless absolutely necessary. In light of the fact that Murr will be decided by a shorthanded Court comprised of Justices who could easily split evenly on the constitutional issues in the case, the option of sending the case back to the Wisconsin courts may be particularly welcome.

Check back with the Stafford Rosenbaum Appellate Practice Blog for coverage of additional developments in Wisconsin v. Murr.

For media inquiries please contact attorney Jeff Mandell at (608) 210-6303 or jmandell@staffordlaw.com


Wisconsin’s Property Tax Assessment Statutes Challenge to be Decided by the Wisconsin Supreme Court

Published by Jeffrey A. Mandell, Holly J. Wilson on | Permalink

The Wisconsin Supreme Court will soon decide whether Wisconsin’s law on property tax assessment is constitutional. The Court heard oral arguments for Milewski v. Town of Dover, No. 2015AP152, 2016 WL 1761988 (Wis. Ct. App. May 4, 2016) (unpublished opinion) last month, and the Wisconsin Realtors Association, the Institute for Justice, and the Wisconsin Department of Justice filed amicus briefs in support of the plaintiffs. The Milewski case could significantly change how municipalities appraise home values for purposes of assessing property taxes.

The Town of Dover hired Gardiner Appraisal Service, LLC to perform a new assessment of all real property in the town for the 2013 tax year. The plaintiffs, Vincent Milewski and Morganne MacDonald, are homeowners in the Town of Dover. They received a notice stating that an assessor—a Gardiner representative—would be stopping by to view the interior of their home. The plaintiffs denied the assessor entry into their home. Gardiner sent another letter to the plaintiffs, stating that their property needed to be assessed. The second letter explained that, Wis. Stat. § 70.32(1), requires an assessor to value property based upon “actual view or from the best information that the assessor can practicably obtain,” and that Wis. Stat. § 70.47(7)(aa) prohibits homeowners from contesting their assessments if they refused “a reasonable written request…to view [their] property.”

When the plaintiffs did not provide the assessor access to the interior of their home, Gardiner assessed the value of the property at $307,100. This assessment was a 12.12% increase in the value from the previous assessment. Milewski, slip op., ¶5. Gardiner explained that it reached this figure by taking into account several factors including: (1) the possibility that the plaintiffs remodeled over the past nine years (although this had not been verified); (2) its inability to evaluate if the effective age of the home increased or decreased; and (3) the fact that assessed values of many area homes had increased that year. Id. Citing Wis. Stat. § 70.47(7)(aa), the board of review rejected the plaintiffs’ request to review the assessment because the board found the plaintiffs had refused a reasonable request to view the property. Id.

Having struck out with the board of review, the plaintiffs filed a complaint in circuit court, arguing that the Wisconsin statutes for property tax assessment and appeals were unconstitutional and that Gardiner had over-assessed their property. The circuit court granted the Town’s and Gardiner’s motions for summary judgment, dismissing the claims against them. The Wisconsin Court of Appeals affirmed that ruling.

The plaintiffs argued on appeal that the Fourth Amendment, which guarantees a right to privacy, protects them from compelled interior inspections. Id. ¶13. For support, the plaintiffs relied on Camara v. Municipal Court, 387 U.S. 523 (1967), which held that a housing inspector needed a warrant to enter the plaintiff’s apartment to conduct routine annual inspections. Id. The Court of Appeals distinguished Camara because no civil or criminal penalties resulted from the plaintiffs’ decision to deny the tax assessor entry. Id. ¶14. The Court of Appeals likened this case to Wyman v. James, 400 U.S. 309, 317-18 (1971), where the Supreme Court held that social worker visits conducted pursuant to New York’s welfare program were not Fourth Amendment searches because the visitation was not forced and the beneficiary’s denial to enter the home was not a criminal act. Here, the Court of Appeals reasoned that the plaintiffs were not being forced to allow Gardiner entry and they could refuse.

The plaintiffs also argued, to no avail, that Gardiner retaliated against them with a higher-than-reasonable assessment because they had not allowed an assessor to view their home’s interior. Milewski, slip op., ¶22. The Court of Appeals said the plaintiffs failed to show that Gardiner intentionally assessed their property for greater than true value. In addition, the Court of Appeals held that Gardiner followed the law in appraising the property, rejecting the plaintiffs’ argument that Gardiner had ignored the statutory requirement to base appraisals on the “best information.” Id., ¶24. Therefore, the Court of Appeals dismissed all of plaintiffs’ claims.

The Wisconsin Supreme Court must now decide whether Wisconsin’s property tax assessment laws invade the right to privacy guaranteed by the Fourth Amendment. If the Fourth Amendment is implicated, the Court must decide whether it is reasonable for the property tax assessment laws to mandate warrantless searches. If the Supreme Court reverses the lower courts, Wisconsin homeowners might be able to freely deny interior property appraisals without forfeiting the ability to contest the resulting assessment to the board of review. This could complicate municipal efforts to assess properties for taxation purposes.

U.S. Supreme Court to Clarify State’s Treatment of Military Disability Benefits in Divorce Case

Published by Katherine Harrell, Janice Bensky on | Permalink

On March 20, 2017, the Supreme Court will hear arguments in Howell v. Howell, No. 15-1031 (U.S.). The case involves a conflict between a federal law, the Uniformed Services Former Spouses’ Protection Act (“USFSPA”), and a state court spousal support order. The Supreme Court is now hearing this case because different states have reached different conclusions about how the USFSPA affects state court orders.

Specifically, the Howell case presents the following question: does the USFSPA pre-empt a state court order directing a veteran to indemnify a former spouse for a reduction in the former spouse’s share of the veteran’s military retirement pay, when that reduction results from the veteran’s post-divorce waiver of retirement pay in order to receive compensation for a service-connected disability? 

The facts are as follows:  John Howell, a veteran, and Sarah Howell were divorced in Arizona in 1991. The divorce judgment provided that Sarah would receive fifty percent of John’s “military retirement when it begins.”  Once John retired in 1992, both he and Sarah began receiving an equal share of his military retirement pay.  In 2005, the Department of Veterans’ Affairs determined that, as a result of a service-connected shoulder injury, John qualified for a 20 percent disability rating.  John elected to waive a corresponding portion of his military retirement pay so that he could receive disability benefits.  Disability pay, unlike retirement pay, is exempt from taxation and cannot be divided.  However, John’s unilateral decision to receive disability pay in lieu of some retirement pay meant that Sarah’s share of his retirement pay was also diminished.  After John accepted the disability benefits, Sarah’s share of the retirement pay dropped by approximately $125 per month. 

In response to the reduction in the amount of retirement pay she was receiving, Sarah sought relief from the family court in Arizona.  In 2013, she requested an arrearage for the amount of retirement pay she had expected but had not received since John accepted the disability benefits (a grand total of $3,813 at that time).   John moved to dismiss Sarah’s request.  The family court sided with Sarah and ordered John to indemnify—that is, to pay—her for the amount of the reduction.  The family court’s decision was affirmed by the intermediate appellate court and then the supreme court of Arizona.  The U.S. Supreme Court granted John’s petition for review in the U.S. Supreme Court in December 2016. 

The Supreme Court must now decide whether the state court’s order violated the USFSPA as interpreted in Mansell v. Mansell, 490 U.S. 581 (1989).  The USFSPA permits state courts to treat “disposable retired pay” in accordance with the law of the jurisdiction of such court.  “Disposable retired pay” does not include the amount a veteran waives in order to receive disability benefits.  Mansell therefore interpreted the USFSPA as foreclosing state courts from treating as community property the portion of military retirement pay a veteran has waived in order to receive disability benefits.  That means that in a divorce, a state court may treat retirement pay as community property, but federal law preempts the state court from treating a veteran’s disability pay as community property.

Howell differs from Mansell in several respects.  In Mansell, the husband was retired at the time of the divorce and had already waived a portion of his retirement pay in order to receive disability benefits.  Additionally, the Mansells’ divorce judgment specifically provided the wife with fifty percent of the husband’s “total military retirement pay, including that portion of retirement pay waived so that [the veteran] could receive disability.”  Such is not the case in Howell.  John Howell’s waiver of retirement pay occurred nearly fifteen years after the court entered his divorce judgment.  Additionally, neither the divorce judgment nor the family court’s order requiring John to indemnify Sarah purported to treat John’s disability pay as community property. 

The Arizona courts found that the divorce judgment gave Sarah a right to fifty percent of John’s full retirement benefits.  The courts held that John violated his obligations under Arizona law by unilaterally decreasing the amount to which Sarah was entitled.  They further concluded that indemnification was an appropriate remedy, and that the USFSPA did not prohibit indemnification because the order did not divide John’s disability benefits, require that John rescind his waiver of retirement pay, or direct him to pay Sarah his disability benefits.

The fact pattern in which a divorced veteran waives some amount of retirement income and instead opts to receive disability pay—to the detriment of his or her spouse—arises frequently.  State supreme courts have split on the question as to whether an indemnification order like the order in Howell is pre-empted by the USFSPA.  Some state courts have upheld indemnification orders, asserting that the orders provide an ex-spouse what he or she would have received had the veteran spouse not gone on disability.  Other state courts have found indemnification orders to be an impermissible attempt at distributing the veteran’s disability benefits.  Wisconsin courts have not confronted this issue.  The Supreme Court’s upcoming decision—likely in May or June—will provide guidance concerning the scope of the USFSPA preemption in divorces throughout the country.


Published by Amy Collins, Anthony Menting on | Permalink

In the midst of an acrimonious divorce, Paula Epstein surreptitiously placed an auto-forwarding “rule” on her husband’s email account that automatically—and unbeknownst to him—forwarded a copy of every email he received to her. Through this arrangement, Paula discovered emails between her husband (Barry) and several women. She then accused him of infidelity as part of the divorce action.  Due to the accusations, Barry’s attorney sent a document request to Paula for all communications related to Barry’s alleged adultery. When Paula’s attorney produced the intercepted emails in response, Barry realized that Paula had somehow gained access to his email account. Barry filed a federal law suit alleging that Paula and her attorney had violated the Wiretap Act, 18 U.S.C. § 2511. The litigation resulted in the Seventh Circuit’s recent decision, Epstein v. Epstein and Frank, No. 15-2076 (7th Cir. Dec. 14, 2016).

The Wiretap Act makes it unlawful to intentionally intercept any wire, oral, or electronic communication. The Act also prohibits the intentional disclosure or use of the contents of an unlawfully intercepted communication. Barry argued that Paula had violated the Act by intercepting the emails and that her attorney, Jay Frank, intended to use the unlawfully intercepted emails as part of the divorce litigation. Both Paula and Frank moved to dismiss the action, arguing that only intercepting an email contemporaneously with transmission violates the Act. (If the interception is not contemporaneous, the transmittal is governed by the Stored Communications Act.) The trial court agreed and dismissed the action.

The Seventh Circuit affirmed the ruling as to Frank but held that the claim should not have been dismissed as to Paula. The court found that Frank did not unlawfully disclose the communications because the disclosure resulted from Barry’s discovery requests in the divorce litigation. Essentially, Barry consented to the disclosure by making the request. Barry also could not identify any way Frank made actual use of the emails in the divorce litigation. As such, his mere possession or likely intent to use the intercepted emails did not violate Act.

With respect to Paula, by contrast, the court held that the claim should proceed so that the parties could determine whether the emails were intercepted contemporaneously.  Though there appeared to be gaps between when the emails were received by Barry and then intercepted by Paula, the appellate court held that more information was needed about the auto-forwarding rule to conclude that the interceptions could not possibly be contemporaneous. Barry’s claim against Paula was sent back to the trial court to resolve those outstanding questions.

Judge Posner wrote a separate, concurring opinion that questions whether the Wiretap Act should even apply. In Judge Posner’s view, federal law should not necessarily protect all types of privacy, including the concealment of criminal activity (adultery remains a criminal offense in Illinois where Barry resides). Thus, Judge Posner argues, the Wiretap Act should not apply to communications intercepted to obtain evidence of a crime, even for a crime that is almost never subject to prosecution.

Barry’s federal suit turned on the definition of contemporaneous and how specific email servers work, rather than the substance of the communications as emphasized by Judge Posner. In contrast, family court cases are often more focused on the substantive facts than specific interpretation of detailed statutory definitions. However, whether the interception of the emails or the bad acts of either party will have an effect on the outcome of the divorce has yet to be seen. As of the date of publication of the Seventh Circuit opinion, the divorce case has been pending for more than five years and remains unresolved.

Wisconsin Supreme Court: Blood Draw by EMT in County Jail for OWI Test

Published by Holly J. Wilson, Erika Bierma, Susan Allen on | Permalink

Under Wisconsin law, blood can be drawn from a person arrested for operating a vehicle while intoxicated “OWI”) to determine the presence or quantity of alcohol in the person’s body. However, only a physician, registered nurse, medical technologist, physician assistant, phlebotomist, or other medical professional who is authorized to draw blood, or person acting under the direction of a physician may withdraw the blood. The Wisconsin Supreme Court, in Wisconsin v. Kozel, 2017 WI 3, ___ Wis. 2d ___, ___ N.W.2d ___, recently concluded that an EMT who drew an alleged drunk driver’s blood was a “person acting under the direction of a physician” under Wis. Stat. § 343.305(5)(b), and therefore fell within the category of individuals authorized to draw blood.  As a result, the Court concluded that the suspect’s blood was drawn in a constitutionally reasonable manner.

In August 2013, a Sauk County Deputy Sheriff arrested Patrick Kozel for allegedly driving while intoxicated. At the Sauk County jail, Kozel consented to have his blood drawn. An EMT employed by Baraboo District Ambulance Service conducted the blood draw. Testing by the Medical Toxicology Section of the Wisconsin State Laboratory of Hygiene showed a blood ethanol level of 0.196 g/100 mL, in excess of the legal limit of 0.08 g/100 mL. See Wis. Stat. § 340.01(46m). In October 2013, the Sauk County District Attorney’s office charged Kozel with one count of operating a motor vehicle while intoxicated, second offense, and one count of operating with a prohibited alcohol concentration, second offense.

Subsequently, Kozel filed a motion to suppress the results of his blood test. Kozel argued that: (1) his blood was not taken by a person statutorily authorized to do so, namely a “person acting under the direction of a physician,” Wis. Stat. § 343.305(5)(b); and (2) his blood was taken in a constitutionally unreasonable manner, see U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”). Kozel, 2017 WI 3, ¶ 10. The State introduced the following evidence during the motion hearing:

  • As of August of 2013, the EMT was both licensed and certified by the State of Wisconsin to “perform legal blood draws.”

  • The EMT had been performing legal blood draws since June of 2009 under the supervision of a physician licensed in the State of Wisconsin who is the “medical director” of the Ambulance Service.

  • As the medical director, the doctor “signs off on not only [EMT] licenses, which allow [the EMTs] to practice medicine, but also any of the additional training and/or procedures that require approval.”

Id. ¶ 14.

Based on these facts, the circuit court denied Kozel’s motion to suppress the blood draw result. Kozel appealed. The court of appeals reversed, remanding the case to the circuit court to suppress the evidence obtained from Kozel’s blood. The court of appeals concluded that “the evidence was insufficient to establish that the EMT [who drew Kozel’s blood] was operating under the direction of a physician.” Id. ¶ 28. Given that conclusion, the court of appeals found it unnecessary to analyze whether the blood draw was constitutionally reasonable. The State appealed.

The supreme court reversed. First, the court concluded that the State’s evidence demonstrated that the EMT was acting under the direction of a physician because the doctor was in charge of the blood-drawing activities conducted by the EMT. See id. ¶ 39. The court rejected Kozel’s argument that the statute requires a specific type or degree of direction. Second, the court held that the blood draw in this case was constitutionally reasonable. Under the Fourth Amendment, the taking of a blood sample is a search, and therefore it must be reasonable. The court found that the evidence demonstrated the EMT was thoroughly trained and experienced in properly drawing blood, it was not unreasonable for the blood draw to occur in the non-medical setting of the jail, and Kozel failed to demonstrate that he had objected to the particular circumstances of the blood draw. See id. ¶¶ 44-47.

Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson, dissented. They concluded that there was insufficient evidence to support a finding that the EMT who drew Kozel’s blood was a “person acting under the direction of a physician” as required by Wis. Stat. § 343.305(5)(b), and that Kozel’s blood draw was not constitutionally reasonable based upon the facts of record.  See id. ¶ 55 (Bradley, J., dissenting). The dissent also argued the fact that the EMT was authorized to act under a physician’s license was not evidence of acting under the physician’s direction for purposes of the statute. The dissent made a distinction between “directed” and “authorized,” and concluded that there was insufficient evidence to establish the EMT was working under the direction of a physician. See id. ¶ 72 (Bradley, J., dissenting). The dissent also concluded the record was silent as to the existence of written protocols detailing how to conduct a blood draw. This appears to be the critical distinction between Kozel’s case and existing precedent. Based on the record deficiencies, the dissent concluded that there was insufficient evidence to support the majority’s conclusion that the EMT was acting “under the direction of a physician” as required by the statute. See id. ¶ 87 (Bradley, J., dissenting).

The dissent also analyzed the constitutional reasonableness of the blood draw. The dissent concluded it was unreasonable because there was no evidence of any written protocols or procedures in the record. Specifically, the supervising physician did not train the EMT, never witnessed the EMT perform a blood draw, and never approved the EMT’s blood-draw techniques. See id. ¶ 98 (Bradley, J., dissenting). The record also failed to establish evidence of safety and accuracy as required by cases that concluded the blood draw was constitutionally reasonable.

This case presents interesting questions regarding the location and staffing of blood draws.  Further, this case affirmed the blood-draw procedures employed by many Wisconsin jails. This case also provides a framework for how lower courts will likely analyze the constitutional implications of future blood draws, should they be challenged under the Fourth Amendment. Contact your Stafford Rosenbaum LLP criminal defense or municipal law attorney should you have any further questions.

Seventh Circuit Continues to Limit Federal Jurisdiction Over Class-Actions, Despite CAFA Statute

Published by Jeffrey A. Mandell on | Permalink

In 2005, Congress passed the Class Action Fairness Act (“CAFA”) “to facilitate adjudication of certain class actions in federal court.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554 (2014). CAFA relaxed the strictures of diversity jurisdiction to allow more plaintiffs to file class actions in federal court, and it provided separate removal authority that made it easier for class-action defendants to insist upon a federal forum. But, as the Seventh Circuit’s recent decision in Tri-State Water Treatment, Inc. v. Bauer, No. 16-3938 (7th Cir. Jan. 5, 2017), illustrates, courts have not interpreted CAFA to be as much of a break with general jurisdictional rules as Congress envisioned.

Federal jurisdiction, class actions, and CAFA

Federal courts have limited jurisdiction. They adjudicate cases that involve questions of federal law (federal question jurisdiction) or arise between citizens of different states (diversity jurisdiction). As a general matter, federal diversity jurisdiction reaches any case in which no plaintiff is a citizen of the same state as any defendant and there is at least $75,000 at stake. 28 U.S.C. § 1332. When a plaintiff chooses state court as the forum to litigate a suit that meets the criteria for federal diversity jurisdiction, the defendant(s) can remove—that is, transfer—the case to federal court. 28 U.S.C. § 1441.

Class actions are a particular kind of lawsuit that seek to aggregate the claims of large groups of plaintiffs for resolution in a single proceeding. In some circumstances, class actions are essential, because each plaintiff’s individual harm is real, yet too slight to justify litigation on its own. Consider, for example, a scenario where several companies that produce a popular consumer product allegedly conspired to fix prices at an inflated level. If every consumer who bought the product in the past few years overpaid by $2 per unit purchased, even those consumers who used the product most heavily suffered losses of only a few hundred dollars—nowhere near enough to offset the costs of litigating a large antitrust action. But if millions of consumers bought the product, their total losses could be enough to make litigation, on a class-wide basis, feasible.

The class-action mechanism is ripe for abuse, however, because the threat of a massive judgment—even a small judgment per plaintiff adds up when awarded to a class with hundreds of thousands of members—can threaten a defendant’s viability. Plaintiffs and their lawyers can use that threat as leverage to extract settlements that shield defendants from the risk of outsized judgments and highly compensate the plaintiffs’ lawyers, while providing nominal (or even no) benefits to most members of the plaintiff class.

Such leverage is particularly effective—and therefore the potential for abuse is especially acute—in some state courts, where the procedural rules are more favorable to class-action plaintiffs than they are in federal court. CAFA sought to ameliorate this concern by bringing more class actions into federal court, rather than state court. It allowed plaintiffs to file in federal court, even if some members of the plaintiff class hailed from the same states as one or more defendants, so long as the plaintiff class included at least 100 people and there was at least $5 million at stake. 28 U.S.C. § 1332(d)(2).

CAFA also made it easier for class-action defendants to remove litigation to federal court. It created specific authorization for the removal of class actions from state court to federal court. 28 U.S.C. § 1453(b). It also excepted class-actions from several restrictions that generally apply to removal, including that removal must be sought within one year of the suit’s beginning, that removal is prohibited if a defendant is a citizen of the state in which the suit was brought, and that all defendants must unanimously seek removal. Id. And CAFA authorized an immediate appeal to settle disputes over the proper forum, see id. § 1453(c), whereas issues of removal and remand typically cannot be appealed until after final judgment.

Courts have not acted upon the full breadth of CAFA’s removal provisions. As I argued in an amicus brief to the U.S. Supreme Court, the plain text of CAFA authorizes removal by a defendant in any class action, without regard to whether there are at least 100 plaintiffs and $5 million at stake. Notwithstanding the text of CAFA’s removal provision, which does not reference the requirements to file a class action in federal court, courts have routinely held that removal is available to class-action defendants only if the suit involves at least 100 plaintiffs and $5 million. See, e.g., Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 617 (7th Cir. 2012); Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 679 (7th Cir. 2006).

The Seventh Circuit’s decision in Bauer rejects an attempted removal of a class action on different grounds. The Bauer holding is not directly contrary to CAFA’s text, but it exposes a fascinating tension between CAFA’s purpose and its integration into the larger federal jurisdictional scheme.

Bauer holds that not all class-action suits can be removed from state court

Bauer began as a collection action in small claims court in Illinois. Tri-State Water Treatment, Inc. installed a water treatment system at the home of Stacey and Michael Bauer. When the Bauers did not pay Tri-State’s bill, Tri-State filed suit. In response, the Bauers filed a counterclaim, alleging—on behalf of a putative class of buyers across several states—that Tri-State used fraudulent sales tactics. Several months later, the Bauers amended their counterclaim to add two additional counterclaim defendants, including Home Depot U.S.A., Inc. The Bauers allege the counterclaim defendants offered free in-home water tests and used the results to mislead consumers into purchasing unneeded water treatment systems.

Home Depot responded by invoking CAFA’s removal provision to transfer the suit from state to federal court. At the Bauers’ request, the federal court sent the case back to state court. The remand order reasoned that CAFA did not authorize Home Depot to remove the case. Home Depot then invoked CAFA’s provision allowing petitions for interlocutory appeal and asked the Seventh Circuit to decide where the case should proceed. The Seventh Circuit agreed to hear the appeal and affirmed the district court’s conclusion that Home Depot cannot remove this case from state court.

The Seventh Circuit’s decision turned on its conclusion that CAFA “does not support treating an original counterclaim-defendant different from a new one.” Bauer, slip op. at 2. This proposition grows out of an earlier decision, First Bank v. DJL Properties, LLC, 598 F.3d 915 (7th Cir. 2010). These decisions, individually and together, undermine CAFA’s purpose and its efficacy.

First Bank held that a plaintiff who chose to litigate in state court could not then seek removal to federal court solely because the original defendant filed a class-action counterclaim. Id. at 916-17. There is an intuitive logic to this. It is not obvious the original plaintiff should get to reconsider its strategic decision to litigate in state court just because the defendant raises a class-action counterclaim. There is a legal logic to it as well. The Seventh Circuit explained that CAFA authorizes removal by a “defendant,” which term has been long understood in other removal statutes to exclude a litigant who files an action as a plaintiff in state court and then, after the original defendant files a counterclaim, “wears two hats, one as plaintiff and one as defendant.” Id. at 916 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)).

However, the First Bank court gave short shrift to counterarguments. While the court placed significant import on the original plaintiff’s choice of forum, it did not consider that often, including in the underlying claims giving rise to the First Bank case, the plaintiff has no choice between filing in state or federal court because there is not enough money at stake to trigger federal diversity jurisdiction. And, though the Seventh Circuit asserted that CAFA “did not say anything similar to: ‘Courts may allow removal whenever the case involves a large, multi-state class action,’” id. at 918, that is essentially the correct reading of CAFA and accords with Congress’s goals in passing the statute.

Bauer compounds these errors. It acknowledges that a party, like Home Depot, added to litigation for the first time as an additional class-action counterclaim defendant “is not one who voluntarily chose state court.” Slip op. at 8. It nonetheless falls back on the notion that such a party falls outside the meaning of “defendant” as developed in longstanding removal case law and summarized in First Bank. The Bauer decision considers three options—(1) allowing removal of the entire case, (2) splitting the class-action counterclaim so that the new defendant can remove and the original plaintiff cannot, and (3) denying any right of removal—before concluding that “the one that does the least damage to both the jurisdictional statutes providing for removal and litigation efficiency is the third.” Id. at 9. But in weighing these options, the decision pays insufficient attention to CAFA itself, and how CAFA differs from other jurisdictional statute providing for removal.

Bauer most clearly reveals its shortcomings when it addresses CAFA most directly. In the court’s words:

CAFA only selectively increased federal jurisdiction over multi-state class actions. It did not roll out the welcome mat for all multi-state class actions. Instead, it established restrictions on what class actions the federal courts could and could not entertain. These restrictions include amount-in-controversy and numerosity requirements…

Id. at 12 (emphasis in original). This oversimplifies CAFA—and sells the statute short. CAFA expressly did invite removal of all multi-state class actions. There is no basis in CAFA for applying the referenced restrictions to class actions removed from state court. Bauer is perhaps the most jarring of several decisions in which the Seventh Circuit has imposed constraints on the expanded federal jurisdiction Congress passed CAFA to provide.

Divided Wisconsin Supreme Court Changes Law on Fourth Amendment

Published by Jeffrey A. Mandell, Erika Bierma on | Permalink

In State of Wisconsin vs. Richard L. Weber, 2014AP304-CR (Wis. Nov. 29, 2016), a divided Wisconsin Supreme Court ruled that a police officer does not violate the Fourth Amendment to the U.S. Constitution by pursuing an individual suspected of a minor traffic violation into that suspect’s own home. The Fourth Amendment, like a similar provision of the Wisconsin Constitution, provides that individuals will not be subject to unreasonable searches or seizures by the government.

The case is notable not only for its groundbreaking result, but also because it splintered the Court in an unusual way, with Justice Rebecca Bradley, a conservative, joining liberal Justices Ann Walsh Bradley and Shirley Abrahamson in dissent. New, conservative Justice Dan Kelly also rejected one of the central tenets of the lead opinion, though he chose not to dissent and instead concurred in the outcome on other grounds.


On April 20, 2012, Deputy Calvin Dorshorst of the Wood County Sheriff’s Department noticed that Richard Weber’s car had a defective tail light; he flashed his lights in an effort to get Weber to stop. Weber did not stop, but continued 100 feet, turned into his driveway and parked in his attached garage. Deputy Dorshorst followed him into the driveway, parking 15 to 20 feet outside the garage. Deputy Dorshorst contacted dispatch and indicated he was conducting a traffic stop. He exited his vehicle and ran forward, stating that he needed to speak with Weber, who continued up the steps to his house. Weber did not stop until Deputy Dorshorst entered the garage and grabbed him by the arm. Deputy Dorshorst then asked Weber to return to the vehicle so that Deputy Dorshorst could “point out exactly the reason for the stop and which light was defective.” Weber, slip op., ¶ 5.

At that point, Deputy Dorshorst testified, Weber tried to pull away and enter the house. Importantly, all of Deputy Dorshorst’s actions to that point related to the defective tail light. Deputy Dorshorst did not articulate a basis to believe Weber might be intoxicated until he made contact with Weber, observed “slow, slurred speech” and “glassy, bloodshot eyes,” and smelled “a strong odor of intoxicants.” Id. Under prior Fourth Amendment case law, an officer needed to have a particularized suspicion that a driver was operating while intoxicated before he could expand a traffic stop or investigation. Deputy Dorshorst’s suspicions arose only after he had expanded his investigation by entering Weber’s garage and grabbing his arm.

Weber and Deputy Dorshorst left the garage and walked onto the driveway. When the Deputy asked Weber if he had been drinking, Weber said that he had. Weber refused to perform field sobriety tests, and Deputy Dorshorst placed him under arrest. Among other offenses, Weber was cited for Operating While Intoxicated-10th offense, Operating with a Prohibited Alcohol Concentration-10th offense, and Resisting Arrest.

Proceedings below:

Weber sought to exclude evidence of his intoxication on the grounds that the Deputy’s observations and all evidence obtained subsequent to the arrest were tainted because Deputy Dorshorst had violated Weber’s constitutional right to be free from unlawful search and seizure. The circuit court denied Weber’s suppression motion, reasoning that Deputy Dorshorst’s actions were justified by exigent circumstances arising from his hot pursuit of Weber. See id., ¶12. Weber eventually pled guilty and was sentenced to four years of initial confinement and four years of extended supervision. See id., ¶13. Weber appealed the denial of his suppression motion.

The court of appeals reversed the trial court order denying Weber’s suppression motion. The appellate court concluded that hot pursuit alone was an insufficient basis for warrantless entry and held that hot pursuit plus other exigent circumstances were required for a warrantless entry. Id., ¶41. The appellate court explained that the “exigent circumstances requirement means that there must be a potential for danger to life, risk of evidence destruction, or likelihood of escape.” Id., ¶14. It then held that those factors did not exist in this case and observed that “the State appeared to assume that all hot pursuits qualify as exigent circumstances” but provided no legal argument to support that assumption. Id. Because the court itself failed to discern why an immediate warrantless entry was justified, it held that Deputy Dorshorst was not in hot pursuit under sufficiently exigent circumstances to justify a warrantless entry into Weber’s garage. Id., ¶41. The State filed a petition for review in the Wisconsin Supreme Court.

The Wisconsin Supreme Court’s decision:

The Wisconsin Supreme Court analyzed three factors to conclude Deputy Dorshorst’s entry into Weber’s garage was constitutionally reasonable: (1) hot pursuit, (2) exigent circumstances, and (3) the scope of the intrusion. First, the court found that Deputy Dorshorst was engaged in “immediate or continuous pursuit of a suspect from the scene of a crime.” Id., ¶36. The court found that Deputy Dorshorst was attempting to apprehend Weber, who was fleeing from the Deputy’s lawful traffic stop on a public highway. See id. The court concluded that there was no record evidence of a delay in the Deputy’s response that would have interrupted the immediacy and continuity of the situation to dissipate the exigency. See id. The continuity of the situation, the court held, justified Deputy Dorshorst’s warrantless entry into Weber’s garage. See id.

The court then turned to exigent circumstances. Unlike the court of appeals, which had started by defining exigent circumstances and then compared the definition to the facts of Weber’s case, the supreme court began by looking at the specifics of the statutory violations Weber was alleged to have committed. See id., ¶37. Both Operating While Intoxicated and Resisting Arrest are jailable offenses. The supreme court deemed that a relevant factor in evaluating whether exigent circumstances justified Deputy Dorshorst’s warrantless entry. See id. This is a significant change in the law. None of the factors that courts have traditionally required before finding exigent circumstances was present here—as the court of appeals had already determined. But the supreme court decided that, if the alleged infraction under investigation carries a possible jail sentence, exigency can exist regardless of the circumstances. See id.

Third and finally, the court held that the intrusion was minimal in nature. Deputy Dorshorst did not damage any property, open any doors or windows, or pull any weapons. Rather, “he simply stepped into Weber’s garage and seized his arm.” Id., ¶38. To the court’s majority, these “[t]wo actions, entry and apprehension, were calculated to accomplish no more than was absolutely necessary to halt Weber’s escape.” Id. This holding, like the exigent circumstances ruling, appears to deviate from the court’s precedents. Previously, the court used the phrase “minimal intrusion” only in the context of a traffic stop. Weber is an unprecedented application of that concept to excuse police entry into a protected place—that is, a place where the owner has a reasonable expectation of privacy.

Having found that Deputy Dorshorst’s actions did not violate Weber’s Fourth Amendment rights, the supreme court affirmed the denial of Weber’s motion to suppress and his convictions.

Additional opinions:

The Weber decision also featured the first opinion written by Justice Kelly, who became the court’s newest member when Governor Walker appointed him in July to the remainder of retired Justice David Prosser’s term. In Justice Kelly’s view, Deputy Dorshorst lacked probable cause to arrest Weber for jailable offenses before the Deputy entered the garage, which would preclude utilization of the hot pursuit doctrine. He joined the majority in denying Weber’s suppression argument, however, because he believed that Weber had consented to Deputy Dorshorst’s entry into the garage. See id., ¶46 (Kelly, J., concurring). Justice Kelly concluded that Weber, by entering the garage, chose that as the venue for his interaction with Deputy Dorshorst and thereby invited the Deputy into the garage. See id., ¶73. This approach deviates significantly from the court’s previous opinions about consent.

The dissenting opinion by Justice A.W. Bradley (joined by Justices Shirley Abrahamson and Rebecca Bradley) concluded that, prior to entering the garage, Deputy Dorshorst had no probable cause to believe Weber had committed a jailable offense. See id., ¶85 (Bradley, J., dissenting). Nor did sufficiently exigent circumstances exist at the time to justify a warrantless entry. See id. The dissent summarized that “the lead opinion conflates legal doctrines, disregards controlling United States Supreme Court precedent and engages in flawed circular reasoning.” Id., ¶136. The dissent evinces concern over the erosion of constitutional rights and complains that the Weber decision sets a “trajectory where bit by bit, almost unnoticed, we may awaken one day to discover that the freedoms for which so many have fought and sacrificed have been severely curtailed.” Id. ¶83.

Seventh Circuit Decision Calls for Class Action Reform

Published by Susan Allen on | Permalink

In its recent decision in Manistee Apartments, LLC. v. City of Chicago, No. 15-3113 (7th Cir. Dec. 20, 2016), a three-judge panel of the Seventh Circuit Court of Appeals upheld the district court’s dismissal of the plaintiff’s class-action complaint.  Potentially more interesting than the decision itself was the court’s express call for changes to the class-action process to avoid frivolous class actions motivated solely by attorneys seeking fees.

The claims at issue in the case arose from a default administrative judgment entered against Manistee Apartments in 2011 by the City of Chicago.  Once registered, the judgment imposed a lien against Manistee’s real estate holdings.  Manistee claims it first became aware of the lien years later, when pursuing a sale of its real estate.  In response to Manistee’s inquiry, the City provided a payoff letter detailing the outstanding amount, which included the underlying judgment of $3,540, plus $820.34 in statutory interest and $1,394.82 in collection costs and attorney fees.  Manistee disputed only the collection costs and attorney fees.  While working to resolve the City’s claim, Manistee conveyed the property to an out-of-state buyer representing the title was clear.  It also paid the total amount due to the City, but claimed to be doing so “under protest.”  Shortly thereafter, Manistee filed a class action against the City, alleging that the assessment of collection costs and attorney fees violated due process guarantees under the federal and state constitutions, as well as other provisions of Illinois state law. 

The district court granted the City’s motion to dismiss on the grounds that Manistee’s payment to the City was not made under duress, but was voluntary.  As a result, Manistee could not be deprived of a protected property interest under federal law.  Finding no federal constitutional violation, the court applied the same test to dismiss the state constitutional claims and declined to exercise supplemental jurisdiction over the remaining state-law claims.

On appeal, the Seventh Circuit employed similar reasoning in upholding the district court’s decision.  The court noted that there was a more than year-long gap between the date of sale of the property by warranty deed and the release of the lien as well as the fact that the sale price of the property was only $10, ultimately rejecting Manistee’s claim that it was coerced into paying the full amount demanded by the City.  The court easily held that there was no deprivation of any property interest by the City, and upheld the district court’s dismissal of Manistee’s claims.  Noting the extremely minimal amount at issue and the extremely limited pool of the potential class of plaintiffs in the same position as Manistee, the court went on to question the true motivation behind the class action.  The answer:  attorney fees – a fact which plaintiff’s counsel apparently admitted during oral argument.  The court explained “it is cases like the one before us that demonstrate precisely why the courts, and Congress, ought to be on the lookout for ways to correct class action abuses.” 

The court’s distain for attorney abuses of the class action and overall litigation system in this case is clear.  Unfortunately, no easy answer exists to protect defendants against the hassle and costs of such litigation, but the court has issued a clear warning to class-action counsel that it has no patience for this sort of extortion-style litigation.

Court of Appeals Allows Riparians to Place a Pier on Privately Owned Flowage Bed

Published by Paul Kent, Vanessa D. Wishart on | Permalink

A recent case from District III of the Wisconsin Court of Appeals, Movrich v. Lobermeier, No. 2015AP583 (Ct. App. Nov. 29, 2016), addresses the right of owners of property adjacent to a flowage to access the flowage and install a pier on the flowage bed when the portion of the flowage bed abutting that owners’ property is owned by someone else.  Jerome and Gail Movrich, the owners of property adjacent to a flowage, filed suit against David and Diane Lobermeier, the owners of the flowage bed adjacent to the Movriches’ property, seeking a declaration of the Movriches’ ability to access the flowage and to install a pier attached to the bed of that flowage.  The trial court concluded that the Movriches could access the water from their property and install a pier on the flowage bed, and the Lobermiers appealed that decision.  The court of appeals affirmed.

The flowage at issue was created around 1941 by the Town of Fifield’s damming of Sailor Creek.  At that time, the owner of the land to be flowed, Margaret Hussmann, granted to the Town and its assigns and successors “the perpetual right, privilege and easement” to flood a portion of lands.  Hussmann retained the interest in the submerged land as well as adjacent upland property. Overtime, Hussmann’s interest in this land was transferred to various parties. One such party was the Lobermeiers, who became owners of upland waterfront property as well as a portion of the bed underlying the flowage. The Lobermeiers eventually sold their upland property but retained their interest in the submerged land. In 2006, the Movriches purchased waterfront property abutting the flowage. A portion of the Lobermeiers’ submerged property abuts the Movriches’ upland waterfront property.

When the Movriches’ purchased their property, there was already a pier installed that extended from their property into the flowage.  The Movriches used their property and the flowage in various ways, including fishing, mooring their boat to the pier, wading in the water, and kayaking, up until 2011 or 2012.  At that time, the Lobermeiers began asserting their exclusive right to use the flowage bed adjacent to the Movriches’ property.

The Movriches brought suit against the Lobermeiers, seeking a declaration of their rights to access the flowage from their waterfront property and to install a pier extending into the flowage.  The circuit court concluded that the public trust doctrine allows the Movriches the right to access the flowage directly from their property and to erect, maintain, and use a pier anchored to their property and to the bed of the flowage.   

The court of appeals concurred with the circuit court that this case turned on the interaction between riparian rights and the public trust doctrine, which preserves for the public the right to use navigable waters for navigation and “incidents of navigation.”  Before the court of appeals, the Lobermeiers conceded that the public trust doctrine applies to the flowage.  However, they argued that the public trust doctrine does not grant the Movriches a right to access the flowage from the Movriches’ property, as opposed to from a public access point, nor does the public trust doctrine give the Movriches the right to place a pier on the flowage bed owned by the Lobermeiers. The court rejected the Lobermeiers’ arguments on two main grounds. 

First, the court rejected the Lobermeiers’ reliance on a cases involving waterbodies located entirely within the boundaries of one owner’s property.  The court distinguished those cases, wherein adjacent property owners did not obtain riparian rights, from the instant case, on the ground that the Lobermeiers did not own the entire flowage bed and neither the flowage bed nor the flowage itself were entirely within the boundaries of the Lobermeiers’ property. The court explained that such cases were not determinative on the facts in the instant case. 

Second, the court opined that because the flowage was created by the damming of a navigable river, the Lobermeiers’ property interests were subordinate to the public’s right to use the flowage pursuant to the public trust doctrine.  The court explained that it was required to interpret the public trust doctrine in a manner that allows the public to fully enjoy its benefits.  The court further explained that because piers aid in navigation, the Movriches’ rights under the public trust doctrine include the right to access the water from their property and the right to erect a pier on the privately owned flowage bed. 

The court’s authorization of access to public trust waters in this case is in keeping with well-established law. However, allowing a riparian to place a pier on a privately owned flowage bed is an extension of current law. In Munninghoff v. Wisconsin Conservation Commission, 255 Wis. 252, 39 N.W.2d 712 (1949), the court held that the public trust doctrine did not give members of the public the right to place structures, in that case muskrat traps, on privately owned beds because trapping was not an “incident of navigation.” Although the court in Movrich did not discuss Munninghoff, it used the “incidents of navigation” rationale to authorize the placement of a pier on a privately owned flowage bed at least by a riparian owner.

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